Arizona Bankruptcy American Inn of Court
February 9, 2012
Pupilage Number 1
Evidentiary Objections

Evidentiary Objections
 Video Vignette
 Table Discussion
 Answer
 Ruling
Hypothetical 1
Hypothetical 1, Question 1
 Should the objection be sustained or
overruled?
 (A) The Objection should be overruled; the Debtor may
always testify as to the value of property that he owns.
 (B) The Objection should be sustained; the Debtor is
improperly relying on what others told him.

(C) The Objection should be sustained; the Debtor may
not testify as to the value of his home.
Ruling
Hypothetical 1, continued
Hypothetical 1, Question 2
 Should the objection be sustained or
overruled?
 (A) The Objection should be overruled; newspaper ads
accurately reflect the current value of the Debtor’s car.
 (B) The Objection should be sustained; market reports
or data are never admissible.
 (C) The Objection should be sustained; the ads are
simply the offers from sellers, not reliable as to the
value of cars similar to the Debtor’s.
Ruling
Hypothetical 1, continued
Hypothetical 1, Question 3
Should the Court have admitted the Red Book
values into evidence as Exhibit 2?
 (A) Yes, the Red Book is self-authenticating, and is the type of
reliable compilation or directory that the public and experts in
the field rely upon in valuing a vehicle.
 (B) Yes, the Red Book is a reliable starting point, but there
should be evidence as to the actual condition of the Debtor’s
vehicle to determine an appropriate value therefor.
 (C) No, the Red Book is not a reliable source.
Ruling
Hypothetical 1, Question 4
Should the objection of Debtor’s counsel be sustained
as to the use of the internet version of the Kelly Blue
Book?
 (A) Yes, the internet is an unreliable source.

(B) Yes, Bank’s Attorney created the website on his computer.

(C) No, provided that the Court and counsel are satisfied that
they have actually gone to the internet site of the Kelly Blue
Book.
Ruling
Questions / Discussion
Hypothetical # 2
Hypothetical 2, Question 1
 Is Debtor entitled to a protective order precluding discovery of
Expert’s initial draft report?

(A) Yes. The fraudulent transfer action was filed before the amendments to Rule 26 took effect, so the
old rule applies. But even under the old rule, only hard copies of documents are subject to disclosure.

(B) No. The fraudulent transfer action was filed before the amendments to Rule 26 took effect, so the
old rule applies. Under the old rule, all draft reports prepared by testifying experts are discoverable,
regardless of the form of the report.

(C) Yes. The final report was disclosed and the subpoena was served after the amendments to Rule 26
took effect, so the amended rule applies. Amended Rule 26(b)(4)(B) protects from disclosure any draft
of an expert report, regardless of the form in which the draft is recorded.

(D) No. The final report was disclosed and the subpoena was served after the amendments to Rule 26
took effect, so the amended rule applied. However, even the amended rule does not protect from
disclosure drafts of expert reports that state a different conclusion than the expert’s final report,
because the impeachment value of such a draft is very high.
Ruling
Hypothetical 2, continued
Hypothetical 2, Question 2
 Does amended Rule 26(b)(4) protect the draft expert report from
disclosure?

(A) Yes. Amended Rule 26(b)(4) applies to contested matters, regardless of whether the expert is
actually required to disclose a report.

(B) Yes. The plain language of Rule 26(b)(4) only protects “drafts of any report or disclosure
required under Rule 26(a)(2).” Rule 26(a)(2) does not apply in contested matters, and the expert
was not actually required to produce a report. However, if the expert voluntarily produces a
report, the amended Rule protects the report from disclosure.

(C) No. The plain language of Rule 26(b)(4) only protects “drafts of any report or disclosure
required under Rule 26(a)(2).” Rule 26(a)(2) does not apply in contested matters, and the expert
was not actually required to produce a report. Therefore, Rule 26(b)(4), which protects drafts of
expert reports required to be disclosed, does not apply to the plan confirmation hearing.

(D) No. The bankruptcy case was filed before the amended Rule 26 took effect, and therefore the
amended rule does not apply.
Ruling
Hypothetical 2, Question 3
 Assuming the Amended Rule did apply to the plan confirmation
hearing, which of the following would be protected from
disclosure?

(A) Emails between the Debtor’s attorney and the Expert in preparation for
the confirmation trial about Money Bank’s expert report, which Expert did
not consider in forming his own opinion of the Plan’s feasibility.

(B) Expert’s invoices.

(C) Any testimony concerning Expert’s conversation with the Debtor’s
attorney about the facts and assumptions Expert should consider.

(D) All of the above.

(E) None of the above.
Ruling
Questions / Discussion
Hypothetical # 3
Hypothetical 3, Question 1
 Based on the testimony you just heard, is Mr. Smartish qualified to
testify as an expert? Should Mr. Smartish’s testimony be allowed?
 (A) The testimony should be allowed: Mr. Smartish is
sufficiently qualified as an expert.
 (B) The testimony should not be allowed; Mr. Smartish is not
sufficiently competent to qualify as an expert.
 (C) The testimony should not be allowed; the point scoring
system utilized by Mr. Smartish has not been sufficiently
established as a reliable methodology.
Ruling
Questions / Discussion
And the Winner is . . . . .
The End
 Thank you for your attendance and participation!